Court backs air marshal dismissed for revealing data

‘Freedom of speech won': After losing for years, fired Ladera Ranch air marshal prevails in U.S. Supreme Court.

A former Air Marshal who was fired for leaking news that the government had been preparing to stop employing Air Marshals on overnight flights is eligible for whistleblower protection, the Supreme Court ruled Wednesday. Fired air marshal Robert Maclean believes the law protects whistleblowers like himself from retaliation, benefiting the public by exposing problems in government agencies. Supreme Court decision defending a government whistleblower not only strikes a blow for free speech, it shows this court can line up in ways that confound conventional wisdom about its ideological divide. Roberts Jr., writing for the majority in the 7-to-2 decision, said that the ruling might create security problems by entrusting the confidentiality of sensitive security information to “the idiosyncratic judgment” of each of the Transportation Security Administration’s employees, but that Congress could address the issue by amending the law. Supreme Court on Wednesday when it affirmed that MacLean’s dismissal for disclosing “sensitive security information” was wrong, and that the Whistleblower Protection Act was designed to protect employees like him. “Freedom of speech won with an exclamation point,” said Tom Devine, legal director of the Government Accountability Project, in a prepared statement. “(A)fter defending his rights for more than eight years, he will have a chance to achieve justice….

On a 7-2 vote Wednesday, the court rejected the argument of President Barack Obama’s administration to reverse an appeals court ruling in favor of Robert MacLean. Robert MacLean believed that a 2003 TSA plan to dramatically scale back the deployment of air marshals — even in the face of credible terror plots — due to fiscal concerns would post a serious security threat. The ruling is a historic victory for the right of individuals to make a difference through freedom of speech.” In 2003, MacLean received an alarming emergency alert from the Department of Homeland Security, detailing a “specific and imminent terrorist threat focused on long-distance flights – a more ambitious, broader-scale version of the 9/11 plot,” court briefs say.

Lawyers for the government stated in court that MacLean violated internal TSA regulations against public disclosure of “aviation security measures,” the Los Angeles Times reported. MacLean, received a secret briefing from the T.S.A. about a terrorist threat affecting long-distance flights involving weapons smuggled onto aircraft in cameras and children’s toys.

Whistleblowers are protected by federal law that keeps the government from firing them for what they say, unless the disclosures are specifically prohibited by law. “… Two days later, he received a text message from the security agency saying that it was canceling assignments that required an overnight stay in order to save money. Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks,” the decision said.

The majority opinion, written by Chief Justice John Roberts, also drew the support of a collection of the court’s liberals and conservatives: Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Elena Kagan. In an era of predictable 5-4 decisions on the court, it was refreshing to see such a diverse coalition of justices in this case, particularly in a large majority. Fallout was fast and furious: Lawmakers decried the idea as foolish, officials backtracked and overnight missions for air marshals continued as usual. Roberts added that since MacLean’s disclosure actually forced the TSA to change its stated policy goal of removing Air Marshals from flights, he is precisely the kind of whistleblower that the law is meant to protect, the LA Times wrote.

MacLean at first thought the cancellation message was a joke or a test of some sort. “Everybody said, ‘This doesn’t make any sense,’ ” recalls MacLean. “We just had this emergency briefing that we’re under attack. The two dissenters were Justices Sonia Sotomayor and Anthony Kennedy, who argued that the majority is essentially allowing employees to determine what sensitive information they can reveal to the press. All too often those who speak out in an effort to call attention to something they believe is wrong are unceremoniously crushed by government, to the detriment of the public interest. Or it could try anew to justify the firing in a federal administrative court, arguing that MacLean didn’t really believe that people were at risk when he made the disclosure. Several TSA administrators already have testified that they believed MacLean was sincere in his efforts to safeguard the public, even though they believed his disclosures were prohibited by agency regulations.

He reasoned that the statute had used the word “law” in isolation in the relevant provision, while the rest of the statute often used the broader phrase “law, rule or regulation.” He also disagreed with the government’s contention that some regulations should nonetheless count as law because they were “promulgated pursuant to an express congressional directive.” “Outside of this case, however, the government was unable to find a single example of the word ‘law’ being used in that way,” the chief justice wrote. “Not a single dictionary definition, not a single statute, not a single case. The government’s interpretation happens to fit this case precisely, but it needs more than that to recommend it.” Justice Sonia Sotomayor, joined by Justice Anthony M.

MacLean stressed that his disclosure was very different from disclosures roiling the intelligence community recently; the information MacLean shared was not classified.